Western District Rejects Same Actor Inference

There are various constructs which serve to limit access to juries for discrimination victims. One of those constructs is the so-called “same actor inference.” The same actor inference provides that if the same manager who hired an employee later fires that same employee, then it is unlikely that that manager was motived by discriminatory animus. The reasoning is that if she hired you knowing you were Hispanic, then it is unlikely she would fire you because you are Hispanic. But, there are limitations to this inference. See, e.g., Soublet v. Louisiana TaxCommission, 766 F.Supp.2d 723, 729 (E.D. La. 2011) (When considering a motion for summary judgment, the same actor inference does not apply when 1) the context involves a failure to promote. Since, a person might be willing to hire the member of a minority for an entry level job but not for promotion, and 2) issue of fact exists whether the manager was responsible for both hiring and promotion); Feingold v. NY, 366 F.3d 138, 155 (2d Cir. 2004) (if “changes in circumstances during the course” of employment, the defense “would not necessarily apply”); Carlton v. Mystic Transport’n, 202 F.3d 129 (2d Cir. 2000) (“the enthusiasm with which the actor hired [plaintiff] … may have waned”). The same actor inference might make sense when the time between hiring and firing is relatively short. But, if years pass between the hiring and firing decisions, it loses considerable utility.

In reality, we never know to any degree of certainty what motivates a manager when someone is fired. An inference is just that, an inference. The Western Districtof Texas recognized the limitations of the same actor inference in Jones v. R.G. Barry Corp., No. 16-CV-154 (W.D.Tex. 3/17/2017). In that case a long-time employee, Sandra Jones, was let go when her position was eliminated in 2015. She was terminated by Mr. Evans. Mr. Evans had promoted the Plaintiff previously in 2007. Ms. Jones was retained by the employer in 2012 when several other members of her department were laid off that year. The employer suggested, but did not directly claim that Mr. Evans had some role in the decision to retain Plaintiff in 2012. Ms. Evans sued for discrimination based on her gender and her age.

The court did not buy the employer’s argument. It noted that the same actor inference is just that, an inference. It can be rebutted. It noted that the employee argued that other reasons may have played a role in the decision to retain the Plaintiff in 2012. She was the only person with knowledge of the distribution center at the time. If an inference should arise from Ms. Jones’ promotion in 2007, then the court would first need to look at who else may have been available for that promotion in 2007. The court found this was sufficient to rebut the inference. It noted correctly that it cannot apply the same actor inference without assessing the credibility of witnesses. Since this was a motion for summary judgment, any inference should be construed in favor of the non-movant, the Plaintiff. See the decision here.

These so-called doctrines, “same actor inference,” “stray remarks doctrine,” honest belief doctrine,” and others are constructed to help us understand the evidence. In reality, they often serve as a bar to a jury trial. They should never become more important than the evidence itself. When a court reviews a motion for summary judgment, it should keep in mind that these are all just inferences. As inferences, they are of limited utility in deciding summary judgment.